MIRA RANI KHAMARU Vs. DURGA BALA DAS

JUDGEMENT

(1.) THIS is an application by the defendants 3 and 4 against the order dated August 18, 1982 made by the learned Munsif, 1st Court, serampore in Title Suit no. 205 of 1977, allowing the opposite party no. 1's application for amendment of the plaint. The opposite party no. 1, Durga Bala das instituted the suit for declaration of title and permanent injunction and for accounts under sections 36 and 37 of the bengal Money Lenders Act. Several issues were framed of which. Issue no. 1 "is the suit maintainable in its present form?" was one of them. Dealing with 64 issue no. 1, the learned Munsif held that the plaintiff had no interest in the suit land and the suit was not maintainable the learned Munsif dismissed the suit holding that it was not necessary to discuss the other issues as the plaintiff had no title to the suit land. The plaintiff challenged the said decision in Title Appeal no. 158 of 1980. The learned Subordinate judge by his judgment dated February 14, 1981 allowed the appeal and sent the case back on remand for a fresh trial on the evidence on record and in the light of the observations made in the body of the judgment and in accordance with the fact and law. Thereafter, the plaintiff filed an application praying for amendment of the plaint by incorporating certain statements with regard to her acquisition of title in the suit property. The said prayer was allowed by the learned Munsif by the impugned order. The defendant nos. 3 and 4 have challenged the said order in the present revision case.

(2.) MR. Roy Chowdhury, in support of the Rule, has argued that the trial court had no jurisdiction to grant amendment of the plaint after remand. It has been contended by Mr. Roy Chowdhury that having regard to the order of remand there was no scope for amendment of the plaint which would obviously require introduction of further evidence which the learned Munsif cannot admit in view of the direction contained in the order of remand. Mr. Roy Chowdhury argues that the trial court has no jurisdiction to enlarge the cope of the suit after it was remanded by the learned appellate court Mr. Roy Chowdhury also submitted that the application was filed at a very late stage Record was received by the learned Munsif after remand on February 23, 1981. The order dated. 7. 7. 1982 would show that additional issues had already been framed in accordance with the direction of the learned appellate court and arguments Were heard in part and the case was adjourned to July 15, 1982 for hearing further arguments. The application was filed on this date. Mr. Roy Chowdhury has also referred to the case of Mt. Munneswari and ors. V. Sm. Jugal Mohni Dasi, A. I. R. 1952 Calcutta 368 and has argued that as no leave was granted by the learned appellate court while remanding the suit for re-hearing, the learned Munsif was to re-hear the suit as it was remanded and he could not allow amendment of the plaint which would involve introduction of additional evidence.

(3.) MR. Banerjee, learned Advocate for the opposite party no. 1, has argued that the learned Munsif had jurisdiction to entertain and allow the application for amendment of the plaint as there was no restriction in regard to the same in the order passed by the learned appellate court. Mr. Banerjee has argued that in the original plaint there was no specific pleading about the title though evidence had been led in regard to the same. Mr. Banerjee contends that ,as the appellate court has directed additional issues in regard to the title of the plaintiff, it was necessary that the averment should be made in respect of the title of the plaintiff. Otherwise, the question of title cannot be decided. Mr. Banerjee further contends that there was open remand and the appellate court did not debar the trial court from taking evidence.